JUDGMENT : Stanley, J.:— The suit which has given rise to this appeal was brought by the plaintiffs Saiyed Yawar Husain and Saiyed Mustafa Husain as Mohammedans of the Imamia sect under section 539 of the Code of Civil Procedure “for the removal from the possession” of certain endowed property of the Mutwalli Saiyad Mehdi Husain “and of any other defendant who may be in possession of it,” and the appointment of Mutwallis in the place of Saiyad Mehdi Husain, and for the framing of a scheme for the management of the waqf property. In the plaint it is alleged that the defendant Saiyad Medhi Husain improperly alienated portions of the endowed property and also neglected the management of the trust. The other defendants were sued as transferees from Saiyad Mehdi Husain of portions of the endowed property. 2. The learned District Judge held that with the exception of, the transfer of mauza Chak Alipur in the pleadings mentioned the transfers and incumbrances made and created by Mehdi Husain could not be maintained. He passed a decree that Mehdi Husain be removed from the post of Mutwalli and that one Saiyad Alt Jan be appointed in his place, and he directed that the new Mutwalli should manage the property according to the directions given in the deed of waqf, “bring into his possession” all the moveable and immoveable property belonging to the waqf and keep an account of the income and expenditure and file a copy thereof in Court every year. With the exception of the defendants-appellants the other defendants have submitted to the decree. The defence of the defendants-appellants was that they were improperly sued as defendants, and that the plaintiffs had no right to bring a suit under section 539 against them. They claimed to be entitled as mortgagees to a 2 anna 8 pies share in Nasib Khan-Mandavi portion of the property in dispute, and submitted that they could not be dispossessed so long as the debt due to them remained unpaid. 3. From the judgment it appears that the claims of the defendants-appellants and the other defendants were fully considered. The learned District Judge held that these claims could not be supported with the exception of the claim in respect of Chak Alipur to which I have referred. 3. From the judgment it appears that the claims of the defendants-appellants and the other defendants were fully considered. The learned District Judge held that these claims could not be supported with the exception of the claim in respect of Chak Alipur to which I have referred. In the course of his judgment he says, “as regards the oilier transfers made and encumbrances created by Mehdi Husain, I am of opinion that they cannot be maintained. It is not proved that those transactions were made and encumbrances created for any necessity and no sanction of the mujtahid was obtained in those cases. On the contrary, the documents connected with them, and produced in this case, show that Mehdi Husain did not make those transfers or create those encumbrances in his capacity as Mutwalli but in his private capacity. This was distinctly in contravention of the provisions of the waqf deed.” The defendants-appellants alone have appealed from the decree. In their memorandum of appeal they rely upon several grounds, but only one has been pressed before us, namely, that the transfers made in favour of the appellants, could not be set aside in a suit brought under section 539, and that the suit as against them ought to be dismissed. No one has appeared to resist that appeal. 4. It appears to me that there is no force in the appeal. After a very careful consideration of the language of section 539, I have come to the conclusion that the claim of the plaintiffs was not open to objection, and that they were entitled to implead the defendants-appellants as persons into whose hands portions of the endowed property had come. It may be that the Court has no power in a suit brought under section 539 to set aside a deed whereby endowed property has been mortgaged or transferred to a stranger, but I see no good reason for holding that under that section the Court cannot, as it did in this case, determine of what the trust properties consisted or find that particular alienations of them could not be maintained, provided, all proper parties are represented before it. If transferees or mortgagees who have been impleaded in a suit instituted under section 539, do not accept the findings of the Court in that suit, it may be necessary for the trustee appointed by the Court to manage the trust property to institute a suit for recovery of possession. As to this I express no opinion. So far, however, as I can discover, the decree passed by the learned District Judge in this case whereby he directed the trustee to bring in to his possession, that is, to get in the endowed properly, is not open to objection, In the case of Sajedur Raja Chaudhri v. Gaur Mohan Das Baishnav : [1897] I.L.R., 24 Cal., 418, it was held that a suit for the dismissal of a trustee and for recovery of trust property from the hands of a third party to whom the same had been improperly alienated, fell within the scope of section 539. BANERJI and RAMPINI, JJ. relied upon the words “such further or other relief as the nature of the case may require” contained in section 539 as justifying the view which they took of the section. In the course of their judgment they say, “where, as in this case the alleged breach of trust consists mainly in improper alienations of the trust property by the trustee, the vesting of any property in the trustees to be newly appointed, coupled with ‘such further or other relief as the nature of the case may require,’ may well include the taking possession of the trust property from the hands of a third party, to whom the same may be shown to have been improperly alienated.” In answer to the argument that if a suit under section 539 is allowed to be brought against a defaulting trustee and a third party, the suit may be open to the objection of misjoinder, they say “where a suit under section 539 is open to that objection, the objection will no doubt have effect given to it, but it does not follow that a suit against a trustee guilty of breach of trust, and a third party who has purchased any trust property from him, can in no case be brought under the section, even though the section as to misjoinder does not apply. In the present case we are of opinion that no objection on the ground of misjoinder can apply, the suit so far as any such objection is concerned, being properly framed within the meaning of section 28 of the Code.” This ruling goes further than that which is under consideration, for the learned Judges there lay down that the words in the section “such further or other relief” may well include the taking possession of the trust property from the hands of a third party to whom the same may be shown to have been improperly alienated.” I have had an opportunity of reading the judgment of my learned brother, and in regard to the difficulties which he suggests in the way of accepting the view of the Calcutta High Court in the case to which I have referred, I should find difficulty in following” him. A suit instituted under section 539 is not a suit in which plaintiffs claim, or can claim for themselves, possession of the trust property. They merely ask the Court to vest the trust property in trustees duly appointed to manage the trust and to take it out of the hands of trustees who have been guilty of mismanagement. No change in the beneficial ownership is sought. The Court has undoubtedly power under the section to vest the trust property in the new trustees, and it seems to me reasonably clear that the Court may direct a trustee who is being removed from the trusteeship to make over’ the trust property to the new trustee or trustees. The plaintiffs in such a suit carry on the suit for the benefit of all persons interested in the trust and continue to act as plaintiffs until the decree had been fully executed. As regards the Court-fee in many cases the costs of such a suit as this fall on the trust estate and it seems to me that as the decree in such a suit works no charge in the beneficial ownership of the property, it would be a hardship to impose upon the trust estate the payment of the ordinary Court-fee payable in respect of a hostile suit for recovery of land on title. These are matters which, however, it is unnecessary to determine in the present appeal. These are matters which, however, it is unnecessary to determine in the present appeal. In the “decree now under consideration the Court did not direct possession to be given to the new trustee but merely directed that he should bring into his possession, the trust property.” I may point out that the appellants did not in their written statement confine their defence to the matter now raised by them before us. On the contrary, they set up a number of defenses, such as that there was no valid waqf at all, and that the deed of waqf set up by the plaintiffs was never put into force, nor was the Mutwalli put into possession under it. They also set up the case that the claim was barred by limitation and alleged that the defendant Mehdi Husain was never appointed a Mutwalli of the endowed property. Under the circumstances. I am of opinion that the objection now raised by the defendants is without force, and that their appeal should be dismissed. 5. Mr. Surendra Nath Sen appeared on behalf of some of the respondents and stated that his clients had no interest in the appeal. As they had no interest in the appeal, it was unnecessary for them to attend at the hearing, and I would leave them, therefore, to bear their own costs. 6. I would dismiss the appeal. Burkitt, J.:— I am in full accord with the learned Chief Justice in that part of his judgment just delivered in which he says, “I see no good reason for holding that under that section (section 539) the Court cannot, as it did in this case, determine of what the trust properties consisted of find that particular alienations, of them could not be maintained, provided all proper parties are represented before it. If transferees or mortgagees who have been impleaded in a suit instituted under section 539. do not accept the findings of the Court in that suit, it may be necessary for the trustee appointed by the Court to manage the trust property to institute a suit for recovery of possession.” 7. If transferees or mortgagees who have been impleaded in a suit instituted under section 539. do not accept the findings of the Court in that suit, it may be necessary for the trustee appointed by the Court to manage the trust property to institute a suit for recovery of possession.” 7. I would go further than the learned Chief Justice, and would hold that the direction given by the District Judge to the newly appointed Mutwalli to “bring into his possession” all property belonging to the waqf is not a decree for recovery of possession’ by the Mutwalli of the property in the hands of the appellants, which the District Judge had found to have formed part of the trust property and to have been “improperly alienated. Such a direction cannot, therefore, in my opinion, be executed as if it were a decree for recovery of possession of immoveable property, If the appellants surrender possession of the property on demand by the Mutwalli, well and good; but if they refuse, then, in my opinion, the Mutwalli cannot recover possession otherwise than in execution of a decree for recovery of possession passed in a suit instituted by the Mutwalli before a Court competent to hear such a suit. 8. I would point out that by section 539, the Legislature does not create a new class of civil rights nor constitute a Court empowered to hear suits relating to infringements of those rights. Were it not for section 539 the class of suits which that section makes triable by the District Judge only, would be cognizable by the ordinary subordinate courts empowered to bear original suits. Vide., section it of the Code of Civil Procedure. 9. Section 539, however, steps in and removes a certain class of suits from the cognizance of the subordinate Courts and makes that class triable by the District judge only. 10. That is to say, the Legislature has by enacting section 539, constituted a special tribunal for the trial of the class of suits which it had removed form the cognizance of the ordinary Courts. 11. The suits so made cognizable by this special tribunal are suits respecting “any alleged breach of any express or constructive trust created for public charitable or religious purposes or whenever the direction of the Court is deemed necessary for the administration of any trust.” 12. 11. The suits so made cognizable by this special tribunal are suits respecting “any alleged breach of any express or constructive trust created for public charitable or religious purposes or whenever the direction of the Court is deemed necessary for the administration of any trust.” 12. This then is the class of suits cognizance of which is reserved to the special tribunal created by section 539. Attempts have been frequently made to draw suits of other classes (very nearly, resembling the specified class) within the purview of the special jurisdiction created by section 539, but such attempts have in variably failed. 13. Now a suit to recover possession of immoveable property on title (even though it be alleged that the property in suit forms part of a waqf property and had been improperly alienated by the Mutwalli) is not a suit of the nature specified in section 539, and therefore, in my opinion, it is not within the power of the District Judge, when hearing a suit under section 539, to pass a decree for recovery of possession of such property. 14. Ordinarily a suit for such an object would be cognizable (according to its value) by a Subordinate Judge or Munsif. The District Judge would have no jurisdiction to hear it unless he had called it up to his Court for trial before himself. I am unable to admit that the power given to the District Judge by section 539 to grant “such further or other relief as the nature, of the case may require” can include power to hear a suit which under the ordinary law he could not hear as a Court of first instance unless he had withdrawn it for trial in his Court. Section 539 specially empowers the District Judge to hear as a Court of first instance a certain class of suits. If the Legislature had desired to invest the special tribunal with the power of hearing suits of other classes (e. g., suits for recovery of possession on titles), it would I think have so provided in clear language and would not have left the Courts to infer the grant of such an extraordinary power from the words “such further and other relief;” 15. Further I would advert to the court-fees paid on the plaint in this suit. Further I would advert to the court-fees paid on the plaint in this suit. I would point out that no court-fee has been paid on the relief asked for by ejectment of the appellants and recovery of possession from them. No offer has been made in the plaint to pay any further court-fees. 16. The fee paid is the small court-fee of Rs. 10, ordinarily payable on the plaint in a suit under section 539, But surely the plaintiff in a suit instituted under section 539 is not to be more favourably treated in the matter of court-fees than any other suitor. When such a plaintiff prays to recover possession of immoveable property, he must (like any other plaintiff in a similar suit) pay the court-fee chargeable on that relief. 17. This consideration strengthens me in my opinion that the plaintiff in a suit instituted under section 539 cannot obtain in that suit a decree for recovery of possession of immoveable pro-petty found by the District Judge to belong to the trust but which is held adversely to the trust by other parties, though he can (as was most properly done in this case) obtain a direction from the District Judge to the Mutwalli instructing the latter to get in the trust property as ascertained by the Judge. 18. It then, in my opinion, remains for the Mutwalli, if resisted by the opposite party, to institute before the proper Court (not before the District Judge) a suit for recovery of possession, paying the proper court-fees on his plaint. That fee he will, of course, recover as part of his costs on obtaining, a decree for possession. Finally I am of opinion that the plaintiffs in a suit (like this, which has for its object to obtain an order for the administration of the trust funds and the removal of a dishonest Mutwalli, are not persons to whom a decree for recovery of possession of alienated trust property could be given, They could hardly put such a decree into execution, and yet as they are arrayed as plaintiffs in the suit, they apparently are the persons to whom personally such a decree, if permissible, would be given and who could execute it. It could not be given to the newly appointed Mutwalli. It could not be given to the newly appointed Mutwalli. He is not the plaintiff nor does he represent the actual plaintiff, and he had no interest in the subject-matter of the suit nor to his appointment as Mutwalli under the decree of the District Judge. For the above reasons I am of opinion that it was not within the competence of the District Judge in this case to pass a decree for recovery of possession of the waqf lands held by the appellants and that the “direction” given by him to the newly appointed Mutwalli was not such a decree. 19. I concur in the order proposed by the learned Chief Justice, dismissing this appeal with costs. By The Court.— The order of the Court is that the appeal be dismissed but without costs, as the respondents are not represented.